Copyright Infringement Defense

Copyright Infringement Defense

Copyright infringement has serious consequences.  If you use someone else’s copyrighted work without permission, you can be liable for significant damages.  However, not all uses of copyrighted material are unlawful.  Copyright law is complex, and you may be able to offer proof of innocence or take advantage of certain defenses available to you.  If you are accused of infringement, a knowledgeable copyright attorney can inform you of available courses of action and ensure your rights are protected.

When Does Use Of A Work Constitute Copyright Infringement?

Copyright law protects original works of authorship that are fixed in a tangible medium (i.e., written down or recorded).  Where a valid copyright exists, only the copyright owner has the right to transfer or grant permission to others to use the work.  As a result, if a third party uses a copyrighted work without authorization, that party may be liable for copyright infringement.

In order to establish copyright infringement, the plaintiff must show that (1) they are the owner of a valid copyright in the work or they have the legal authority to bring a lawsuit, and (2) the defendant actually copied the copyrighted work.  Copyright registration is often evidence of the first prong.  The second prong typically involves (i) showing the defendant had access to the plaintiff’s work, and (ii) the defendant’s material is substantially similar to the copyrighted work.

What Defenses Are Available In Copyright Infringement Claims?

Infringement can be difficult to prove.  As a result, defendants need an experienced attorney to raise any legitimate questions as to whether the plaintiff has established the elements of an infringement claim.  In addition, even where plaintiffs can establish a basic claim, defendants may have affirmative defenses to the action.

Public Domain

If a work is no longer protected by copyright law, a defendant cannot be liable for infringement.  A copyright in a work does not last forever.  Eventually, the work goes into the public domain.  That means it is no longer protected by copyright law, and anyone can use it without permission.  A copyright can end because it expired, the owner failed to renew it when allowed, the owner dedicated it to the public domain, or the work is not copyrightable.

The timeframe for copyright expiration varies depending on when the copyrighted work was created and published.  For works fixed after January 1, 1978, the copyright expires 70 years after the author’s death.  If there are multiple authors, the term lasts for 70 years after the last surviving author’s death.  For works made for hire, pseudonymous works, and anonymous works, the duration of the copyright registration is 95 years from publication or 120 years from creation, whichever is shorter.  The copyright for works created after 1978 cannot be renewed.  For works published prior to 1978, these rules are different.

Fair Use

In some cases, a defendant’s use of a copyrighted work is permitted under copyright law.  The fair use doctrine allows the use of a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.”  Such purposes are deemed beneficial to the public interest, so they are protected under copyright law.

Courts weigh the following four factors in determining whether a use constitutes fair use:

  • The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • The effect of the use upon the potential market for or value of the copyrighted work.
Independent Creation

In many cases, there is an inference that the defendant infringed on the plaintiff’s work based on substantial similarities between the two works and a showing that the defendant had access to the plaintiff’s work.  However, a defendant can rebut this inference by showing that they independently created the work and did not copy it.  This requires evidence of the defendant’s creative process, such as prior drafts and notes.

Lack of Originality and SCÈNES À FAIRE

A defendant cannot be liable for infringement if the work they are allegedly infringing is not original.  An original work is one that is independently created by an individual and involves a minimal degree of creativity.  This excludes certain types of works such as calendars, tables of contents, directories, lists taken from public documents and similar materials.

A related defense is scènes à faire.  This defense is triggered when certain elements of a work are customary to the genre of the work, such as familiar themes and motifs.  Examples of this would include common scenes and stereotypical characters used in western films or spy novels.  These elements are necessary to the genre and are not protectable in any individual works.


Copyright law provides that a court may reduce an award of statutory damages if the defendant proves they were not aware and had no reason to believe that their acts constituted copyright infringement.  This is difficult to prove because innocence is not the same as an unintentionality.  A party who unintentionally infringes is still liable.  Generally, the innocence defense has been limited to “unsophisticated” parties.  However, the defense does not apply if the work had a copyright notice.

Notably, this provision is not a defense to liability.  It only gives the court discretion to reduce statutory damages to not less than $200.  However, courts can choose to not reduce damages or simply reduce them by a miniscule amount.  Innocence does not apply where a plaintiff is seeking actual, rather than statutory damages.

Assertion of a License

If a defendant has a license granting permission to use the copyrighted work, there is no liability for infringement.  The license can be written, oral, or implied.

With oral and implied licenses, it is important to consult an attorney as it can be difficult to prove the existence and terms of the license.  In an implied license, courts will look at the intent of the parties, including the nature of the parties’ relationship and the owner’s conduct during the creation or delivery of the copyrighted material.

In the case of a written license, the terms of the license are likely in dispute if the plaintiff is suing for infringement.  A lawyer is essential to proving the defendant acted in accordance with the license.

DMCA Safe Harbor Provision

Online service providers can risk liability for infringement when they publish infringing content that was posted by a user. However, the Digital Millennium Copyright Act (DMCA) provides a solution. Under the DMCA, copyright owners have a mechanism (i.e., a takedown notice) for requesting that the service provider remove infringing content, and service providers have a defense against infringement. As long as both sides comply with the law, the service provider is protected under the DMCA safe harbor protections.

Abandonment or Misuse

Where a copyright has been abandoned, courts will not allow a claim of infringement. However, it is not enough to show that the plaintiff has not used the copyright by continuing to exploit the work. The defendant must show the plaintiff intended to surrender their rights in the work and performed an overt act evidencing that intent. Evidence may include failing to enforce the copyright against known infringers.

The plaintiff’s misuse of their copyright is also a defense to copyright infringement. Misuse occurs whenever a copyright owner improperly utilizes the rights granted under copyright law in a way that violates public policy. Using a copyright in a highly offensive manner may count as misuse.

Statute of Limitations

An infringement claim may be dismissed if it is time barred by the statute of limitations. There is a three-year statute of limitations, but there are several twists. Most courts follow the discovery rule which states that “an infringement claim does not ‘accrue’ until the copyright holder discovers, or with due diligence should have discovered, the infringement.” The burden of proof is on the defendant to show that the plaintiff knew or should have known about the alleged infringement occurred more than three years before the lawsuit was filed. Further, each instance of an infringing act by the defendant starts a new limitations period. This makes it difficult for defendants to obtain a dismissal.

However, even if the defendant fails to get the matter dismissed, they may succeed in limiting damages. Some courts have held that a plaintiff may only recover damages incurred in the three years prior to filing suit with no recovery for infringement incurred in earlier years. This is not the rule in all courts.


While there are many defenses to copyright infringement, they are highly fact-sensitive and difficult to prove.  Defendants need experienced legal representation to discuss all options available, present the strongest possible case and minimize or avoid liability.


Photo by Ethan Bykerk on Unsplash


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